Citation Nr: 0737059
Decision Date: 11/27/07 Archive Date: 12/06/07
DOCKET NO. 03-34 532 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to service connection for a bilateral knee
disability, to include as secondary to service-connected
residuals of shell fragment wounds to the lower extremities.
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart of the U.S.A.
ATTORNEY FOR THE BOARD
J. T. Sprague, Associate Counsel
INTRODUCTION
The veteran had active service in the United States Marine
Corps from August 1967 to May 1971, to include combat duty in
Vietnam.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 2002 rating decision issued by
the Department of Veterans Affairs (VA) Regional Office (RO)
in Los Angeles, California.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The veteran contends that his bilateral knee disability is
due to his service-connected residuals of shell fragmentation
wounds to the lower extremities. He also claims, in the
alternative, that his bilateral knee disability is directly
linked to in-service trauma.
The veteran was afforded a VA examination in December 2001 in
order to address the potential relationship between his
service-connected residuals of shell fragment wounds of the
lower extremities and any current disability of either knee.
Upon that examination, it was noted that he had a history of
a medical meniscus tear in the left knee (later confirmed by
radiographic imaging; osteoarthritis of both knees was also
subsequently confirmed by X-ray examination in May 2005).
The examiner opined that it was not likely that the veteran's
service-connected residuals of shell fragment wounds to the
lower extremities resulted in (or caused) a current bilateral
knee condition. There is no contrary medical opinion of
record. There is, however, a critical flaw in the opinion
that must be remedied. Specifically, while the potential
causal relationship between the service-connected disability
and the claimed disability has been addressed, there is no
competent opinion as to whether the veteran's residuals of
shell fragment wounds to the lower extremities aggravated a
disability of either knee.
VA regulation provides that a disability which is proximately
due to or results from another disease or injury for which
service connection has been granted shall be considered a
part of the original condition. 38 C.F.R. § 3.310(a) (2007).
When aggravation of a veteran's nonservice-connected
condition is proximately due to or the result of a service-
connected condition, such veteran shall be compensated for
the degree of disability (but only that degree) over and
above the degree of disability existing prior to the
aggravation. Id.; see also Allen v. Brown, 7 Vet. App. 439,
448 (1995); 71 Fed. Reg. 52744 (2006). .
In view of the foregoing, the Board finds that a new
examination and opinion addressing the question of
aggravation is warranted. Furthermore, as the previous
examination is significantly dated, and as the claims file
was not available for review at the time of that examination,
the Board also finds that a new opinion addressing a
potential causal relationship on both direct and secondary
grounds should be obtained. See Snuffer v. Gober, 10 Vet.
App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991);
Accordingly, the appeal is REMANDED to the AMC for the
following action:
1. Review the record and ensure
compliance with all notice and assistance
requirements set forth in the Veterans
Claims Assistance Act of 2000 (VCAA). See
38 U.S.C.A. §§ 5102, 5103, 5103A, 5107
(West 2002); 38 C.F.R. § 3.159.
2. Notify the veteran and his
representative of the amendment to 38
C.F.R. § 3.310, effective October 10,
2006, for the purpose of implementing the
holding in Allen v. Brown, 7 Vet. App. 439
(1995) for secondary service connection on
the basis of the aggravation of a
nonservice-connected disorder by service-
connected disability. See 71 Fed. Reg.
52744 (2006). The amendment essentially
codifies Allen by adding language that
requires that a baseline level of severity
of the nonservice-connected disease or
injury must be established by medical
evidence created before the onset of
aggravation.
3. Schedule the veteran for a VA
orthopedic or joints examination to
determine the approximate onset date and
etiology of any disability of either knee
that may be present. The examiner is
asked to review the relevant evidence in
the claims file and to provide opinions
addressing the following:
(a) Is it at least as likely as not
(50 percent or greater probability)
that any current disability of
either knee that may be present, to
include a meniscal tear and
arthritis, was caused or aggravated
by the veteran's service-connected
residuals of shell fragment wounds
to the lower extremities.
(b) Is it at least as likely as not
that any current disability of
either knee that may be present, to
include a meniscal tear and
arthritis, began during service or
is etiologically related to any
incident of active duty, to include
the veteran's service in Vietnam as
a U.S. Marine Corps combat
infantryman.
The physician is advised that the
term "as likely as not" does not
mean within the realm of
possibility. Rather, it means that
the weight of medical evidence both
for and against a conclusion is so
evenly divided that it is medically
sound to find in favor of
aggravation as to find against
aggravation. More likely and as
likely support the contended
relationship or a finding of
aggravation; less likely weighs
against the claim.
Additionally, the Board advises that
"aggravation" is defined for legal
purposes as a chronic worsening of
the underlying condition, as opposed
to a temporary flare-up of symptoms.
If it is determined that a current
right and/or left knee disability
was aggravated by the veteran's
service-connected residuals of shell
fragment wounds to the lower
extremities, to the extent possible,
the examiner is requested to provide
an opinion as to approximate
baseline level of severity of the
knee disability (e.g., slight,
moderate) before the onset of
aggravation.
The examiner is also requested to
provide a rationale for any opinion
expressed. If a conclusion cannot
be reached without resort to
speculation, he or she should so
indicate in the examination report.
4. After completion to the extent possible
of the directed development, re-adjudicate
the veteran's claim. If the claim remains
denied, issue an appropriate supplemental
statement of the case and forward the case
to the Board for final adjudication.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
_________________________________________________
R. F. WILLIAMS
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).